“Breathing is Clarity” Mark Studin 2021
While recovering from surgery, I responded yesterday to a text from a doctor in Ohio about his fees for testifying for both plaintiff and defendant (depositions). He charged a high fee to the carrier (Allstate), and now the plaintiff lawyer wants to utilize his services as an expert, but wants a discount rate. The question arose about the legality, appropriateness, optics and ethics of this when charging private entities expert fees in a "dual fee system."
Please note this answer is limited to personal injury, in a "pay for hire" scenario with lawyers, and has nothing to do with third party billing. That has its own sets of rules, which is highly regulated.
I then reached out via text (my only way to communicate clearly this week) to an attorney who teaches at the national level, and is expert on this subject. The answer both surprised me a bit, but pleased me greatly.
You can charge what you want to either party, but at some point in time in the case, your fees can become discoverable during the case. At that junction, you stand to be sanctioned or regulated by the courts (judge). If your fees are not usual and customary, that can become a legally defensible issue and be held against you on the case you are working and future cases that can be directed away from you. Never lose sight that all court records are public and lawyers who litigate will read the records to see your courtroom history.
Also, defense lawyers can use that record against you in both current and future proceedings to sanction you to repay fees, or cite your unfair billing practices in front of a jury. Lastly, the defense has the opportunity to bring up a licensure issue, based upon a "2-fee system" although I have no evidence of licensure complaints at that level. NOTE: I strive to consider all potential risk areas and mitigate them BEFORE they happen.
The core of the question is how to determine your fee in your region as usual and customary to ensure a "bulletproof" process.
The 2 key phrases are "usual and customary" and "legally defensible," and those are both safely within your power to determine.
USUAL & CUSTOMARY: To determine usual and customary contact 3 lawyers and ask them what both the average chiropractor IS PAID (not charges) and an orthopedic surgeon. Not a neurologist, neurosurgeon or pain management. There are some specialists that have the reputation for being a PIG financially; if they are part of the equation, remove them and calculate the average of ethical providers.
A chiropractor that has credentials qualifies for increased fees. Writing for a journal, being involved in politics at any level regardless of your tenure, or volunteering at the YMCA or a church, although admirable qualifies for ZERO additional $$.
My limited research reveals that an orthopedic surgeon changes $750 per hour and a non-qualified chiropractor approximately $300 per hour (you need to do the research locally). I, and the legal experts I (I cannot set fees, you must do that for your business) consulted with agree that should a doctor of chiropractic have 2 or more qualifications that are co-credentialed through both chiropractic and medical academia, then coming close to the fee level of the orthopedic surgeon is usual, customary and legally defensible. This is based purely on academic credentials. Experience should pay a large part, but experience in what, more of the same sub-standard practicing from a case management perspective? Never lose sight that we are doctors, case managers and diagnosticians, not just "bone-schleppers." This is not to denigrate the power of the adjustment, it's just we are far more than that.
It is also STRONGLY suggested that you have a published (fee sheet) that you share with lawyers on your testifying fees. You have 1 fee, no matter plaintiff or defense and it is permissible to offer volume discounts.
If a plaintiff or defense lawyer wants to retain me regularly, I will offer them a 15-20-25% volume discount. You get to make that business decision, as long as it is consistent for both sides.